Friday, September 16, 2011

Pro bono conversation continues

Following up on the invitation to engage in a conversation about pro bono work during the next few weeks, here are a couple of items:

1.. In a recent speech, retired Supreme Court Justice John Paul Stevens said that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis. Go here for the full story.

2. Some jurisdictions are considering imposing mandatory pro bono, something that has been considered several times in the past by the drafters of the ABA Model Rules also. In response, Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute, argues that even though "[t]he U.S. legal system is facing a crisis of unparalleled proportions" and that "[t]he legal aid crisis and the courts crisis have morphed into a justice-system crisis" mandatory pro bono is not a good idea. She argues that there are other things all segments of the profession "can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono."

I tend to agree. Mandatory pro bono is not necessarily a good idea. Forcing people to do work they don't want to do usually does not yield good results. For those who don't want to do the work, I would rather urge them to contribute financially to organizations who do want to do the work and can use the resources. If we do institute mandatory pro bono, this financial contribution option should be an alternative to meet the requirement.

In her short article, available here, Lardent names seven other things that can be done. Let me comment on a couple.

She suggests that ABA Model Rule 6.1 should be revised stating that "As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period." I agree that there can be a better way to define pro bono and also that lawyers should be encouraged to do more than simply offer "discounted fees" for clients who can pay regular fees and who have easy access to legal representation. I do think, however, as I said before, that contributing financially to legal aid or other organizations created for the purpose of providing legal aid to those who wouldn't otherwise have access to legal representation should be considered a valid way to meet pro bono obligations.

Lardent also suggests that states should make pro bono reporting meaningful. I couldn't agree more. Some years ago, Illinois adopted a mandatory reporting system. Lawyers are not required to provide pro bono services but if they do provide it, they have to report it. When I ask my students how this would work to encourage more people to do pro bono work, they usually say that other lawyers would be "shamed into" doing it when they saw how many other people were doing it, or when they saw other "competing" firms using their pro bono commitment as a marketing tool, and so on. This is true, and not necessarily a bad thing, but it only works if the reporting results in publicity. Only if the results of the reporting are publicized, and celebrated, will the information have a positive effect on others. I will post a separate comment on this at some point in the future.